Everts v. Matteson

MOORE, P. J.

In this action to recover the deficiency on a note after sale of the property pursuant to the deed of trust given as security for the obligation, the only contentions relied upon for reversal arose out of the court’s rulings upon offers of evidence on the trial of the issues as to the value

[579]

of the property at the time of the sale. This is the second appeal, the first judgment having been reversed because of its error in denying to appellants, as purchasers of the property from the trustors, the benefits of section 580a Code of Civil Procedure. That section limits the amount of a recoverable deficiency to the difference between the entire amount of the indebtedness at the time of the sale and the fair market value of the property at the same time. See 21 Cal.2d 437 [132 P.2d 476] where the facts are fully stated.

Appellants complain that their offer to prove that the bank had in its files an appraisal of $35,000 made for the bank December 12, 1935, was erroneously rejected. They contend that the bank having carried such appraisal through 1938, its record was admissible as a declaration against interest. They sought to accentuate the value of the document by offering to show that such appraisal had resulted from the reduction of a former valuation in the sum of $51,000. A communication from a person who has been employed to appraise a parcel of realty is not a corporate record (Civ. Code, § 371) nor is it admissible because his employer has it among his papers. Both offers were properly rejected as having been too remote from the date of the sale. The correctness of that ruling is readily apprehended by anyone acquainted with the vacillations of realty values and with their rapid depreciation due both to decay of improvements and to the demands for improved facilities or to new architectural trends.

The Lichtenberger appraisal was properly rejected. [While the document declares the amount of the deceased appraiser’s valuation, he had omitted therefrom the recital required by the statute, to wit, that he had “truly, honestly and impartially appraised the property.” (Code Civ. Proc., § 580a.) An objection based upon such omission had been made at the former trial. Mr. Lichtenberger having thereafter deceased, it was incumbent upon appellants to rely upon other experts, as they did, or to procure the appointment of another inheritance tax appraiser who might be available for cross-examination. Inasmuch as “any party” may cross-examine such appraiser his report was not admissible under the circumstances. Even though it had been admitted, the statute does not require the court to appropriate the valuation fixed by the inheritance tax appraiser as its finding of value. Where it is properly admitted such appraisal is to be considered